the principal matter, it is suitable, and according to the analogies of law, that they should possess it over the incidents. (1) Notwithstanding the English practice to the contrary, the admiralty in this country claim to possess a rightful jurisdiction equally over petitory and possessory suits.a

The Schooner Tilton, 5 Mason's Rep. 465. Ware, Judge, in Ware's Rep. 248, S. P. In the case of the Schooner Volunteer and Cargo, 1 Sumner, 551, Mr. Justice Story reasserted, with undiminished confidence, the rightful jurisdiction of the American admiralty over charter-parties and all other maritime contracts, whether made in foreign parts or at home, as matters juris et de jure, and that the court might proceed in rem where there was a lien, and in personam where no such lien existed. He reviewed, with his usual accuracy and spirit, the history of the question of admiralty jurisdiction, as he had already done more at large in De Lovio v. Boit. See supra, 367. On the other hand, in Bains v. The Schooner James and Catharine, 1 Baldwin's C. C. U. S. Rep. 544, Judge Baldwin held, that admiralty jurisdiction, under the constitution of the United States, was to be considered as restrained by the statutes and common law of England before the revolution, and as exercised by the state courts before the adoption of the constitution. It is high time that this vexed question of admiralty jurisdiction, under the constitution of the United States, should be put at rest by a final decision in the Supreme Court of the United States. (2) The Court of Appeals in Kentucky, in the case of Case, &c. v. Wooley, 6 Dana's R. 21, do indeed consider the question as authoritatively settled by the cases of De Lovio v. Boit, Plumer v. Webb, Drinkwater v. The Brig Spartan, The Steamboat Thomas Jefferson, and Peyroux v. Howard, that a civil cause arising where the tide ebbs and flows, even though it may be within a county, was a case of admiralty or maritime jurisdiction. Mr. Curtis, in his Treatise on the Rights and Duties of Merchant Seamen, pp. 252, 253. 260, concludes his examination of the cases with the proposition, that all persons on board a vessel engaged in service, and whose service is of a maritime character, and in the business and employment of the vessel, have a present standing in the admiralty, and come within its jurisdiction, and can sue in personam, and, where there is a lien, in rem. (3)

The jurisdiction of the English admiralty has been enlarged, and doubtful points settled by the statute of 3 and 4 Victoria, c. 63, passed 7th August, 1840. It is entitled "an act to improve the practice and extend the jurisdiction of the high court of admiralty of England." The Dean of the Arches is made an assistant judge of the admiralty court, with concurrent authority. Jurisdiction is given over the claims of mortgagees of ships, over all questions as to the title to ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any case of possession, salvage, damage, wages and bottomry. Jurisdiction is given

(1) Although the remedy on the mortgage of a ship, as on the mortgage of any other chattel, is to be sought in the common law courts, yet, where an admiralty court has sold a ship on a bottomry bond, the previous mortgagee of the ship will be allowed to interpose a claim in admiralty upon the balance of the proceeds. 2 Wood. & M. Rep. 93. 118.

(2) See note (1) ante, p. 369.

(3) An able note on this subject, to the case of The Huntress, 1 Davies Dist. Ct. R. p. 98, by Mr. Justice Ware.

With respect to the criminal jurisdiction of the admiralty, we have already seen, that the courts of the United States do not assume any jurisdiction which is not expressly conferred by an act of congress; and the argument for the extension of the civil jurisdiction of the admiralty beyond *the limits known and established in the English law, *372 at the time of the formation of our constitution, is not free from very great difficulty.

It has been made a question, what were the "cases of admiralty and maritime jurisdiction," within the meaning of the constitution of the United States. It is not in the power of congress to enlarge that jurisdiction beyond what was understood and intended by it when the constitution was adopted, because it would be depriving the suitor of the right of trial by jury, which is secured to him by the constitution in suits at common law; and it is well known, that in civil suits of admiralty and maritime jurisdiction, the proceedings are according to the course of the civil law, and without jury. If the admiralty and maritime jurisdiction of the district courts embraces all maritime contracts, then suits upon policies of insurance, charter-parties, marine hypothecations, contracts for building, repairing, supplying and navigating ships, and contracts between part owners of ships, must be tried in the admiralty by a single judge, to the exclusion of the trial by jury; and the state courts would be divested, at

over all claims and demands in the nature of salvage, for services rendered to, or damages received by, any ship or seagoing vessel, or in the nature of salvage, or for necessaries supplied to any foreign ship or seagoing vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county or upon the high seas at the time. The court may direct issues of fact to be tried by a jury, before a judge of one of the courts of law at Westminster, and the judge of the admiralty is to have the like protection as other judges in the exercise of his jurisdiction. Concurrent jurisdiction over all these subjects and causes of action is retained in the courts of law.

A synopsis of the admiralty jurisdiction in this country is stated to contain, 1. Contracts between part owners, petitory and possessory suits: 2. Charter-parties and affreightments: 3. Bottomry and hypothecation: 4. Contracts of material men. 5. Insurance 6. Wages: 7. Salvage, civil and military: 8. Averages, contributions and jettisons: 9. Pilotage: 10. Ransom: 11. Surveys: 12. Maritime torts and trespasses: The Jurist, for January, 1841, p. 408. All the above causes of action, except those arising on insurance, ransom and surveys, now belong to the English court of admiralty.

one stroke, of a vast field of commercial jurisdiction. The words of the judiciary act of 1789, sec. 9, are, that the district courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable from the sea, by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas." But the act adds, by way of qualification to this designation of admiralty jurisdiction, these words, viz., “saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it."

*373

The act of congress is rather ambiguous in its meaning, and leaves it uncertain whether it meant to consider seizures on tide waters, in ports, harbours, creeks and arms of the sea, as cases of admiralty and maritime jurisdiction, or as *cases simply within the cognizance of the district courts; for the expression is including, that is, comprehending, either within the cognizance of the court, or within the class of cases of admiralty jurisdiction, all seizures under laws of impost, navigation and trade, on waters navigable from the sea, by small vessels of ten tons burden. This act has, however, been construed to put a construction upon the words "admiralty and maritime jurisdiction," conformable to the claims of the civilians, and in opposition to the claims of the common law tribunals; and there is a series of decisions in the Supreme Court of the United States to that effect.

a

In the case of The United States v. La Vengeance, a French privateer was libelled in the District Court of NewYork, for an attempt to export arms from the United States to a foreign country contrary to law. She was adjudged to be forfeited to the United States. The decree, on appeal to the Circuit Court, was reversed. On a further appeal to the Supreme Court of the United States, it was contended, that this was a criminal case, both on account of the manner of prosecution, and the matter charged; and, therefore, that the decree of the District Court was final; and that it ought

3 Dallas, 297.

likewise to have been tried by a jury in the District Court; and that, if it was even a civil suit, it was not a case of admiralty and maritime jurisdiction. To render it such, the cause must arise wholly upon the sea, and not in a bay, harbour or water, within the precincts of any county of a state. But the Supreme Court decided, that it was a civil suit, not of common law, but of admiralty and maritime jurisdiction. The seizure was on the waters of the United States. The process was in rem, and did not, in any degree, touch the person, and no jury was necessary.

a

Afterwards, in the case of The United States v. The Schooner Sally, the vessel was libelled in the District Court, as forfeited for being concerned in the slave *374 trade; and this was also held, on appeal, to be a case, not of common law, but of admiralty jurisdiction. So, in the case of The United States v. The Schooner Betsey, it was held, that all seizures under the act of congress suspending commercial intercourse with a foreign country, and made on waters navigable from sea, by vessels of ten tons burden, were civil causes of admiralty jurisdiction, being proceedings in rem, and not according to the course of the common law, and were to be tried without a jury. The court said, that the place of seizure being on navigable waters, decided the jurisdiction, and that the act of congress meant to make seizures on waters navigable from the sea, civil causes of admiralty and maritime jurisdiction. In this last case, the counsel for the claimant contended that the seizure was made within the body of a county, for a breach of a municipal law of trade, and that though it belonged to the jurisdiction of the District Court, it was not a case of admiralty cognizance. All seizures, in England, for violation of the laws of revenue, trade or navigation, were tried by a jury in the Court of Exchequer, according to the course of the common law; and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty.

In the case of The Samuel, where the vessel and cargo were seized and libelled, and condemned in the District Court of Rhode Island, for a breach of the non-importation

a 2 Cranch, 406.

b 4 Cranch, 443.

c 1 Wheaton, 9.

laws of the United States, the same objection was made upon appeal to the Supreme Court, and it was again overruled, on the authority of the preceding cases. The same objection was taken in the case of The Octavia; and it was contended, that the word including, in the 9th section of the judiciary act, ought not to be construed cumulatively; and that a suit might be a cause of admiralty and maritime jurisdiction,

a

and yet triable under the common law, proceeding *375 *by information, instead of the civil law process by libel. The objection was again overruled. The last case that brought up the same point for review and discussion was The Sarah;b and the Supreme Court there recognised the marked and settled distinction between the common law and the admiralty jurisdictions of the district courts. In seizures made on land, the District Court proceeds as a court of common law, according to the course of the English exchequer, on information in rem, and the trial of issues of fact is to be by jury. But in cases of seizures on waters navigable from the sea, by vessels of ten or more tons burden, the court proceeds as an instance court of admiralty, by libel in rem, and the trial is by the court.

It may now be considered as the settled law of this country, that all seizures under laws of impost, navigation and trade, if made upon tide waters navigable from the sea, are civil cases of admiralty jurisdiction; and the successive judgments of the Supreme Court, upon this point, are founded upon the judiciary act of 1789. If the act of congress declares them to be cases of admiralty jurisdiction, it is apprehended that this is an extension of admiralty powers beyond the English practice. Cases of forfeiture for breaches of revenue law are cognizable in England in the exchequer upon information, though the seizure was made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises, by jury.d Informations are filed in the court of exchequer for forfeiture, upon seizure of property, for breach of laws of reve

a 1 Wheaton, 20.

b8 Wheaton, 391.

C

Thompson, J., 1 Paine's Rep. 504. United States v. Fourteen Packages, Gilpin's R. 235.

d Attorney-General v. Le Merchant, 1 Anst. Rep. 52.